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Watters v. Emery


April 24, 2008


On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-19-05.

Per curiam.


Argued February 4, 2008

Before Judges Lintner, Sabatino and Alvarez.

Plaintiff, Jacob Watters, appeals from a jury verdict entered in favor of defendants, Mansfield Township Police Sergeant Robert Emery (defendant), and Mansfield Township (the Township), finding defendant did not unreasonably seize him or use excessive force during a motor vehicle stop in which plaintiff, who was a passenger, was handcuffed at gunpoint. Defendant and the Township cross-appeal the trial court's rulings that proof of plaintiff's alcohol consumption on the night in question was inadmissible, and that permitted plaintiff's medical expert to testify as to the permanent nature of plaintiff's injures. We affirm.

At around 10 p.m. on July 7, 2004, plaintiff accompanied his friend, Edward Behre, as Behre checked on several hay wagons left in farm fields which Behre's father rented from the Township. Both men were drinking. Plaintiff's family also farms in the area. As Behre headed out of the fields towards the St. Theodore's Church parking lot in order to enter the roadway, he saw a patrol car and a second vehicle blocking access to the lot. Behre turned around and drove back into the fields.

The patrol officer, who saw the vehicle approach and turn around, sent out a radio transmission regarding the truck's movements and its approximate location. He reported that the vehicle made the turn and left the area at a high rate of speed, presumably after spotting the patrol car. Defendant responded to the call.

Minutes later, defendant saw Behre's truck traveling back towards the church parking lot. He immediately gave chase and when he caught up with the vehicle, he activated his overhead lights. Defendant's patrol vehicle was equipped with a fully functional mobile vision camera system. Unfortunately, the camera was not turned on. As a result, the critical events of the evening were not recorded. According to defendant, within two- to three-tenths of a mile, according to plaintiff, within seconds, Behre came to a stop. Defendant radioed in the license plate information, and stepped out of his patrol car with his gun drawn.

Defendant told Behre to turn off the truck engine and throw the keys out of the truck. Defendant opened the driver's side door, and ordered Behre to get out of the truck with his hands up in the air. Defendant grabbed Behre's right arm and forced him down on the ground. He holstered his weapon, cuffed Behre while he was lying on the road, and then drew his gun again. Defendant walked across the front of the truck to the passenger side of the cab and ordered the plaintiff to get out. He walked plaintiff to the front of the truck and forced him onto the ground. Defendant sat plaintiff on the ground and cuffed his hands in front. Defendant acknowledges that while he was removing the men from the car he was loud and used profanity.

Shortly thereafter, the patrol officer arrived on the scene. Once both men were cuffed, defendant searched the cab. As the search was being conducted, the patrol officer administered a field sobriety test to Behre. Finding nothing that implicated plaintiff in any wrongdoing, his cuffs were removed. He sat waiting in the back of a patrol car until Behre's truck could be towed. Although plaintiff was allowed to use his cell phone to call his father, he was told he would not be released at the location of the stop at the farm fields, nor would his father be allowed to come and pick him up there. Plaintiff's father was waiting at the police station when they arrived, and plaintiff immediately left with him.

As a result of the night's events, plaintiff's knee was injured, requiring surgery to repair a partially torn meniscus. Plaintiff's expert opined that "the loss of meniscal tissue [was] a permanent injury" from which plaintiff could suffer medical problems in the future. Defendant's expert disagreed, testifying that given plaintiff's young age, there was a "low probability" that he would ever suffer additional problems.

The Township's Chief of Police testified at trial that the township police protocol requires an objective fear before an officer may un-holster his weapon. These protocols derive from guidelines issued by the State Attorney General's Office. The Police Chief said that because defendant believed himself to be engaged in a high risk felony stop, and was therefore justified in un-holstering his weapon, he took no administrative action against defendant. He did not conduct any investigation, as he believed defendant's behavior was proper. The Police Chief did acknowledge that defendant should have remained in his vehicle until backup arrived.

Defendants produced an expert in police procedures who also testified at trial. He concurred with the Police Chief that although defendant's removal of his weapon from his holster was proper, he should not have left the safety of his vehicle until backup arrived. Defendants' expert said that defendant's stop of the vehicle and his conduct thereafter fell within the guidelines developed for use by police statewide. He characterized defendant's conduct as reasonable.

In the first count, plaintiff's complaint sought damages for the alleged violation of his Fourth Amendment right to be free from unreasonable seizures and the use of excessive force pursuant to 42 U.S.C.A. § 1983. The second count alleged a violation of plaintiff's civil rights as guaranteed by the State Constitution pursuant to the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. The third count sought damages under common law theories of false imprisonment, false arrest, and assault and battery. The fourth and final count sought damages for "spoliation" of evidence, namely, the claimed destruction of the videotape in defendant's patrol car that should have recorded the events of the night in question. The answer filed by defendant and the township denied liability and asserted absolute or qualified immunity.

Plaintiff's points on appeal are as follows:
















At the close of the evidence, plaintiff moved for a directed verdict on the grounds that, as a matter of law, defendant's conduct in drawing his weapon and cuffing the plaintiff, was unreasonable. He now contends the trial court erred in failing to grant the motion.

In reviewing the claim that the trial court erroneously decided a motion for judgment pursuant to R. 4:40-1, we must determine: whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor" of the party opposing the motion, i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. [Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) (alteration in original; citations omitted).]

The Fourth Amendment protects individuals from unreasonable searches and seizures. U.S. Const. amend IV. To state a claim under the Fourth Amendment, a plaintiff must establish that there has been a seizure and that the seizure was unreasonable. See Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed. 2d 889, 904-05 (1968); Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed. 2d 443, 454 (1989). In this case, there is no question that Watters, as a passenger of a stopped vehicle, was seized, Brendlin v. California, ____ U.S. ____, 127 S.Ct. 2400, 2403, 168 L.Ed. 2d 132, 136 (2007), and so the question becomes whether the seizure was reasonable under the Fourth Amendment. Terry, supra, 392 U.S. at 19-20, 88 S.Ct. at 1879, 20 L.Ed. 2d at 904-05.

An officer making an investigative stop must have objective justification for that stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed. 2d 1, 10 (1989) (citing Immigr. & Naturalization Serv. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed. 2d 247, 255 (1984)). Whether a given stop is justified depends on the totality of the circumstances, id. at 8, 109 S.Ct. at 1585, 104 L.Ed. at 10, and in administering the stop, police officers are allowed to use a reasonable amount of force. Graham, supra, 490 U.S. at 395, 109 S.Ct. at 1871, 104 L.Ed. 2d at 454.

A seizure may become unreasonable when excessive force is used to effectuate the seizure. Ibid. In Graham, the United States Supreme Court held that "all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Ibid. The Court explained that "[d]etermining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id. at 396, 109 S.Ct. at 1871, 104 L.Ed. 2d at 455 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed. 2d 1, 7 (1984)).

"It is . . . well settled that a police officer executing . . . a [lawful] stop may exercise reasonable superintendence over the car and its passengers."*fn2 United States v. Bonner, 363 F.3d 213, 216 (3d. Cir. 2004), cert. denied, 543 U.S. 1058, 125 S.Ct. 868, 160 L.Ed. 2d 783 (2005). An officer may order the driver out of the vehicle without any particularized suspicion, Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 332-33, 54 L.Ed. 2d 331, 336-37 (1977), and may likewise order a passenger of a stopped vehicle out of the car. Maryland v. Wilson, 519 U.S. 408, 415 n.1, 117 S.Ct. 882, 886 n.1, 137 L.Ed. 2d 41, 48 n.1 (1997).

The Supreme Court has never addressed the question of whether, during a lawful traffic stop, the police could [forcibly] detain any passengers for the entire duration of the stop. Indeed, the Court explicitly left that question open when it held that the police could order passengers out of the car during a stop." [Bonner, supra, 363 F.3d at 217 n.1 (citing Wilson, supra, 519 U.S. at 415 n.3, 117 S.Ct. at 886 n.3, 137 L.Ed. 2d at 48 n.3).]

In considering the motion for directed verdict, the judge said:

As far as the stop is concerned, was this an investigatory stop? Of course, it was. Did they have grounds to stop them? Yes, they did. . . .

Now we go to the . . . seizure, was it reasonable? That's going to have to be for the jury to decide whether it was reasonable or not.

And in relation to excessive force, he said:

The testimony is that Sergeant Emery denies that he threw him or pushed him to the ground. The plaintiff says that he did. So right there you have a genuine issue of fact as to the amount of force used.

. . . It's a test of . . . objective reasonableness . . . .

. . . [Y]ou both put in sufficient grounds as far as I'm concerned, but if the jury were to go one way or the other I wouldn't offset the verdict because the jury has to make a call on credibility. . . . We have Sergeant Emery's version, we have the plaintiff's version. They are different versions of what happened and that's why we have juries. . . .

. . . I find that there [are] material issues of fact on both sides and I'm not going to grant a directed verdict for either side at this point.

We concur. The reasonableness of the seizure and the objective reasonableness of the amount of force defendant used were in material dispute.

Despite plaintiff's claim that the seizure, detention and amount of force used were all unreasonable, defendant presented proof which, if believed, would make his conduct that night objectively reasonable. Defendant's erroneous belief that Behre's vehicle had "taken off" after observing the patrol car alone, if believed by the jury, establishes a threshold circumstance from which all other decisions arguably flow. And the determination of credibility is uniquely a jury function. State v. Taccetta, 301 N.J. Super. 227, 241 (App. Div.), certif. denied, 152 N.J. 187-88 (1997). If defendant was believed, he considered himself to be engaged in a high-risk, felony stop. If he was not believed, then the seizure and the amount of force employed appear objectively unreasonable, as plaintiff maintained. Therefore, the trial court properly denied plaintiff's motion for judgment pursuant to R. 4:40-1.

It bears noting that the handcuffing of plaintiff did not, as a matter of law, convert the investigatory stop into an arrest, which would require probable cause, notably absent in this case. The cuffing of suspects who have not been arrested is not unlawful per se. See United States v. Smith, 3 F.3d 1088, 1094 (7th Cir. 1993) (listing cases and noting "[w]e have been unwilling to hold that the handcuffing of a suspect without probable cause to arrest is unlawful per se."), cert. denied, 510 U.S. 1061, 114 S.Ct. 733, 126 L.Ed. 2d 696 (1994).


Similarly, plaintiff asserts the jury verdict was a clear miscarriage of justice that should be reversed. R. 2:10-1. Defendants contend that the verdict was not against the weight of the evidence and therefore should not be disturbed. As the judge said on this point:

[T]he evidence presented at trial did not show that Sergeant Emery's actions were definitely unreasonable as a matter of law. . . .

. . . [T]here is no set guideline. There is nothing that says in the law if you draw a gun that you could direct a verdict. . . . When do you draw a gun? When its reasonable to do it. It's fact sensitive. . . .

It's a judgment call. . . . In this case the jury decided that what he did, drawing the gun, getting the boys out, putting them on the ground, et cetera, they found to be reasonable.

We must give deference to the trial court's "'feel of the case.'" Carrino v. Novotny, 78 N.J. 355, 360-61 n.2 (1979) (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 2:10-1). The jury's decision was a highly fact-sensitive judgment call. We therefore cannot say the trial court erred in its determination that the jury could reasonably find defendant credible in light of his testimony and that of his expert. There was no clear miscarriage of justice, and the jury's determination will therefore not be disturbed.


Plaintiff asserts that the trial court also erred in its charge to the jury regarding the law of seizure under the Fourth Amendment. The error occurred, plaintiff alleges, when the trial judge made off-the-cuff statements equating seizure with arrest. The error was compounded, plaintiff claims, when during deliberations the jurors asked for a definition of the term "seizure," and the trial court refused to charge them pursuant to Terry.*fn3 Counsel and the court had invested significant time in drafting written instructions, copies of which were given to the jury, which defined seizure at some length.

A party is entitled to have the jury receive clear and correct jury charges in order to receive a fair trial. Das v. Thani, 171 N.J. 518, 527 (2002) (citing State v. Robinson, 165 N.J. 32, 40 (2000)). "[T]he failure to provide [clear and correct charges] may constitute plain error." Ibid. "'[J]ury charges must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them[.]'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000)) (second alteration in original). Generally, "an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Ibid. (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).

The written charge agreed upon by the court and counsel, which was given to the jurors, characterized an unreasonable seizure as a de facto arrest; it explained that any seizure must be "justified by objective articulable facts." It further explained that the issue for the jury's determination was the reasonableness of the seizure of plaintiff.

When reading the instructions, as well as when explaining the verdict sheet to the jurors, the trial judge extemporaneously made brief comments equating seizure with arrest. The comments, plaintiff contends, confused the jury and triggered their request for a definition of the term during deliberations.

Even if plaintiff is correct that the "ad-libs" confused the jury, once they asked to have the term seizure defined, the judge explicitly told them to ignore his "ad-libs" and focus on the written instructions which they had been given. His refusal to do other than to refer the jurors to the written charge was eminently reasonable. It directed their attention to the detailed definition both parties previously agreed to.

In this case, that plaintiff was "seized" was not in dispute, and the jury was so instructed. The focus of the written instructions was whether the seizure was reasonable, a legally correct statement of law with which plaintiff agreed. Plaintiff asks us to assume that the court's brief comments, or ad-libs, would override the lengthy and explicit charges which were read to them and copies which were given to them. That assumption is not reasonable.

As correctly instructed, the jury could have found that the seizure, in the form of an investigative traffic stop, was unreasonable due to the length, scope and duration of the stop, or that the stop, due to defendant's actions, escalated into a de facto arrest, unsupported by probable cause, and therefore was unreasonable. Plaintiff's real complaint is that the jury, having received a legally correct and detailed definition, nonetheless concluded that the seizure was reasonable.

Plaintiff's contention that the court should have charged the jury on the Terry definition of seizure must also fail. The relevant inquiry was not whether a seizure occurred, but whether the seizure was reasonable. By directing the jury's attention to that written portion of the charge, the judge sufficiently answered the question.


Defendants' expert testified as to the police procedures taught in the various state academies, the use of force, and police training in general. The expert described the methods and materials employed to train officers on how to conduct traffic stops. He was permitted to state his opinion as to defendant's use of constructive force, which opinion was that defendant's use of his weapon and handcuffs to secure the scene was proper when measured against police training standards. The expert testified that reasonableness was "the cornerstone for the appropriate use of force."

Plaintiff asserts that expert testimony was not necessary in order for the jury to assess the reasonableness of defendant's conduct. To the contrary, "[i]n general, expert testimony is required when 'a subject is so esoteric that jurors of common judgment and experience cannot form a valid conclusion.'" Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993) (quoting Wyatt v. Wyatt, 217 N.J. Super. 580, 591 (App. Div. 1987)). We have previously upheld the admission of expert testimony and opinion on police procedure and tactics. McKinney v. East Orange Mun. Corp, 284 N.J. Super. 639, 653-54 (App. Div. 1995), cert. denied, 143 N.J. 519 (1996). Use of expert testimony is necessary because the average citizen has no experience with police techniques and methods. Id. at 653-54. This jury could not have fairly assessed the reasonableness of defendant's conduct in the absence of expert testimony on the subject of police training and procedures. The admission of the testimony was therefore not error.

Nor can the expert be fairly said to have testified as to the ultimate issue in the case. The expert's testimony was grounded in his familiarity with police procedures and training, and limited to that sphere. He did not assess the propriety of defendant's conduct as measured against Federal or State constitutional law. As the judge instructed the jury, in accord with the model jury charge: "[j]ust because I permitted him to give an opinion you still have to decide whether you are going to accept all of what he says, none of what he says or part of what he says. That's still your job."

The expert's opinion was based on his knowledge of and familiarity with police training manuals, guidelines and methods. It was not conclusory but was in fact quite specific and detailed, in no way an inadmissible net opinion, as plaintiff further contends.


Plaintiff also objects to certain comments made by witnesses and defendant's attorney throughout the proceeding, maintaining they deprived him of a fair trial.

The fundamental right of trial by a fair and impartial jury is jealously guarded by the courts. A jury is an integral part of the court for the administration of justice and on elementary principles its verdict must be obedient to the court's charge, based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences. [Panko v. Flintkote Co., 7 N.J. 55, 61 (1951).]

"[T]he parties to the action are entitled to have each of the jurors who hears the case, impartial, unprejudiced and free from improper influences." Ibid. The court should grant a new trial because of "the intrusion of irregular influences" if such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge. If the irregular matter has that tendency on the face of it, a new trial should be granted without further inquiry as to its actual effect. The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so. [Ibid.].

On the whole, the comments require only brief discussion, as none had the capacity to unfairly influence the jury. Plaintiff requested a limiting instruction when defendant said on cross-examination that he was afraid of being ambushed as a state trooper had been killed in their township. The court immediately granted the request and told the jury that the comment was irrelevant and should be disregarded. Juries are presumed to follow instructions. State v. Manley, 54 N.J. 259, 270 (1969).

Plaintiff also complains that the Police Chief said he believed defendant's use of a weapon during the stop was proper. When plaintiff's counsel objected to the opinion, and asked that it be stricken, the court told counsel his point was made to the jury and to move on. The opinion came as no surprise to plaintiff as he was fully aware that the Police Chief considered defendant's use of a weapon to fall squarely within procedures to be followed in a motor vehicle stop. In the credibility charge the trial court gave, which was in accord with the Model Jury charge, jurors were told to consider bias in determining the weight to give to a witness's testimony. In light of the instruction, the statement, if error, appears harmless. The jurors can be safely assumed to have taken into account the Police Chief's relationship with both defendants.

As it progressed, the trial became contentious. During plaintiff's summation, defendants' counsel objected on several occasions. Plaintiff complains about one such instance when defendants' attorney said during plaintiff's summation that he was "ticked off" by what he characterized as plaintiff's attorney's misstatement of the evidence. Although the court instructed the jury about the substance of the objection, no mention was made of the language used. Trials can become highly emotional and at times attorneys are angered by their adversaries. Defendants' attorney's inappropriate remark is too innocuous to be considered to have unfairly influenced the jury.

That expression, like the other comments complained of, simply does not rise to the level of "extraneous considerations" having the capacity to unfairly influence the outcome of the trial. All are relatively minor when viewed in the context in which they were made. There was no error, harmless or otherwise, due to the making of the statements. Therefore there were no cumulative errors which would warrant reversal of the jury's verdict.


In light of the above, we will not address defendants' contentions that the court wrongfully excluded evidence of plaintiff's intoxication as the issue is moot. Neither will we reach the question of the admissibility of plaintiff's medical testimony.


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